Citation NR: 9720816
Decision Date: 06/12/97 Archive Date: 06/19/97
DOCKET NO. 95-36 865 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to an increased evaluation for bilateral hearing
loss, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. McGovern, Associate Counsel
INTRODUCTION
The veteran had active service from June 1943 to October
1947.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from the June 1995 rating decision of the
Phoenix, Arizona Department of Veterans Affairs (VA) Regional
Office (RO), which denied a compensable rating for bilateral
hearing loss.
In an April 1996 hearing officer decision, a ten percent
evaluation was granted for bilateral hearing loss, effective
in October 1994. In a May 1996 statement in support of
claim, the veteran asserted that an evaluation in excess of
the current 10 percent rating was warranted.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that his bilateral hearing
loss is more disabling than the current ten percent
evaluation reflects and that, therefore, an increased
evaluation in warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for an increased rating for
bilateral hearing loss.
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the issue on appeal has been obtained.
2. The veteran’s bilateral hearing loss disability is
manifested by average pure tone thresholds at 1000, 2000,
3000, and 4000 Hertz of 46 decibels in each ear and by speech
recognition ability of 70 percent in the right ear and 66
percent in the left ear.
3. The veteran has level IV hearing in his right ear and
level V hearing in his left ear.
CONCLUSION OF LAW
The criteria for an increased rating for bilateral hearing
loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 4.85, Diagnostic Code 6101, 4.86, 4.87 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran’s claim for an increased rating for bilateral
hearing loss is well grounded within the meaning of
38 U.S.C.A. § 5107. A well-grounded claim is a plausible
claim which is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990). In general an allegation of an increased disability
is sufficient to establish a well-grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet.App. 629
(1992). The veteran has not asserted that any records of
probative value which are not already associated with his
claims folder are available. The Board is satisfied that all
relevant facts regarding the claim for an increased rating
for bilateral hearing loss have been properly developed and
that no further assistance to the veteran is required in
order to comply with the duty to assist him as mandated by 38
U.S.C.A. § 5107.
Factual Background
A review of the veteran’s service medical records reveals
that, at the veteran’s June 1943 enlistment examination and
at a December 1945 examination, his hearing was 15/15
bilaterally. However, at the veteran’s October 1947
discharge examination, watch tests showed that the veteran’s
hearing was 40/40 bilaterally; coin click tests revealed
hearing of 10/20 bilaterally; and whispered and spoken voice
tests revealed that his hearing was 10/15 bilaterally. It
was also noted that “binaural” was 15/15.
In March 1992 the veteran sought treatment at a VA facility
and complained that his hearing loss had worsened. The
assessment was probable sensorineural hearing loss and the
veteran was referred for an audiometric examination.
A November 1992 VA audiological examination revealed average
pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz of
34 decibels in the right ear and 45 decibels in the left ear,
with speech recognition ability of 92 percent in the right
ear and 88 percent in the left ear. The examiner noted that
these results were not adequate for rating purposes. The
assessment was mild to moderate sensorineural hearing loss
from 250 to 8000 Hertz bilaterally; speech reception
threshold not equal to pure-tone average (speech reception
threshold represents better estimate of “listening
sensitivity”); and good bilateral UDS.
At a January 1993 VA examination, the examiner noted that the
veteran could hear a moderate whisper in each ear.
Audiological examination revealed average pure tone
thresholds at 1000, 2000, 3000, and 4000 Hertz of 34 decibels
in the right ear and 45 decibels in the left ear, with speech
recognition ability of 100 percent in each ear. The examiner
noted that there was mild to moderate sensorineural hearing
loss and excellent discrimination. The relevant diagnosis
was bilateral, moderate, mainly high frequency sensorineural
hearing loss, with constant tinnitus which was due in part to
noise exposure and acoustic trauma.
In July 1993, based on the aforementioned evidence, the RO
granted service connection for bilateral high frequency
hearing loss, evaluated as zero percent disabling from
December 1992.
On June 14, 1994, a VA mental health clinic referred the
veteran to the ear, nose, and throat clinic noting that the
veteran had hearing loss. On June 20, 1994, the veteran was
again referred to the ear, nose, and throat clinic and it was
noted that the veteran’s tympanic membranes had copious
cerumen, bilaterally, which needed cleaning. In October
1994, the veteran was treated at the ear, nose, and throat
clinic and the assessment was sensorineural hearing loss with
tinnitus. The plan was to schedule an audiological
examination. An undated VA treatment record reveals that the
veteran sought follow-up treatment for “probable”
sensorineural hearing loss. The assessment was tinnitus and
the plan was to schedule an audiological examination.
In October 1994, the veteran filed a claim for an increased
rating for his service-connected bilateral hearing loss.
A November 1994 audiological evaluation was performed but it
was not adequate for rating purposes in that the pure tone
thresholds at 3,000 Hertz were not reported.
A December 1994 audiological evaluation for rating purposes
revealed average pure tone thresholds at 1000, 2000, 3000,
and 4000 Hertz of 46 decibels in the right ear and 45
decibels in the left ear, with speech recognition ability of
84 percent bilaterally. The examiner noted that the veteran
had bilateral mild to moderately severe sensorineural hearing
loss with good speech discrimination.
In December 1994 and January 1995, the veteran sought
treatment for bilateral hearing loss and he was issued
hearing aids. The assessment was sensorineural hearing loss,
bilaterally.
In his July 1995 notice of disagreement, the veteran stated
that he had been issued hearing aids in January 1995 and that
his hearing continued to worsen.
At the February 1996 personal hearing, the veteran testified
that his bilateral hearing loss warranted an increased
evaluation and that he had been issued hearing aids. Hearing
Transcript (Tr.) at 2, 3. He also stated that he had trouble
hearing in crowds. Tr. at 5. The veteran asserted that his
bilateral hearing loss was at least 50 percent disabling.
Tr. at 7.
A March 1996 audiological evaluation revealed average pure
tone thresholds at 1000, 2000, 3000, and 4000 Hertz of 46
decibels bilaterally, with speech recognition ability of 70
percent in the right ear and 66 percent in the left ear. The
examiner noted that the veteran had bilateral mild to severe
sensorineural hearing loss and fair to poor speech
recognition. The assessment was sensorineural hearing loss;
decreased slightly since last evaluation.
Law and Analysis
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1996). Separate
diagnostic codes identify the various disabilities. In
determining the disability evaluation, the VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589
(1991). These regulations include 38 C.F.R. §§ 4.1, 4.2
(1996), which require the evaluation of the complete medical
history of the claimant’s condition. These regulations
operate to protect claimants against adverse decisions based
on a single, incomplete, or inaccurate report, and to enable
the VA to make a more precise evaluation of the level of the
disability and of any changes in the condition. Schafrath, 1
Vet.App. at 593-94.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, See 38 C.F.R. §§ 4.2, 4.41 (1996), the
regulations do not give past medical reports precedence over
current findings. Francisco v. Brown, 7 Vet.App. 55 (1994).
The severity of hearing loss disability is ascertained, for
VA rating purposes, by application of the criteria set forth
at 38 C.F.R. § 4.85 of VA's Schedule for Rating Disabilities
(Rating Schedule). Under these criteria, the degree of
disability for bilateral service-connected hearing loss
disability is determined by application of a rating schedule
that establishes 11 auditory acuity levels, ranging from
Level I (for essentially normal acuity) through Level XI (for
profound deafness). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.85,
Diagnostic Codes 6100 through 6110 (1996). As described by
the United States Court of Veterans Appeals (Court), the
assignment of disability ratings in hearing cases is derived
by a mechanical application of the Rating Schedule to the
numeric designation assigned after audiometric evaluations
are rendered. Lendenmann v. Principi, 3 Vet.App. 345, 349
(1992).
The November 1992 VA examiner noted that the examination
results were not adequate for rating purposes. The January
1993 VA audiological examination revealed average pure tone
thresholds at 1000, 2000, 3000, and 4000 Hertz of 34 decibels
in the right ear and 45 decibels in the left ear, with speech
recognition ability of 100 percent bilaterally. This equates
to level I hearing in each ear and warrants a zero percent
rating.
At the November 1994 audiological evaluation, pure tone
thresholds at 3000 Hertz were not recorded. Therefore, those
results are inadequate for evaluating the hearing loss under
the rating schedule. A December 1994 audiological evaluation
revealed average pure tone thresholds at 1000, 2000, 3000,
and 4000 Hertz of 46 decibels in the right ear and 45
decibels in the left ear, with speech recognition
ability of 84 percent bilaterally. The December 1994 VA
audiological examination results equate to level II hearing
in each ear which warrants a zero percent rating. 38 C.F.R.
§ 4.85, Diagnostic Code 6100.
The March 1996 audiological examination revealed average pure
tone thresholds at 1000, 2000, 3000, and 4000 Hertz of 46
decibels bilaterally and speech recognition ability was 70
percent in the right ear and 66 percent in the left ear.
Those results equate to level IV hearing in the right ear and
level V hearing in the left ear and warrant a ten percent
rating. 38 C.F.R. § 4.85, Diagnostic Code 6101.
In order to merit a 20 percent evaluation, the veteran must
have significantly greater hearing loss such as level V in
each ear or level VI in one ear and level IV in the other
ear. 38 C.F.R. § 4.85, Diagnostic Code 6102. The veteran
has not demonstrated the requirements for a 20 percent
evaluation; therefore, the current ten percent rating is
appropriate.
The Board notes the veteran reportedly has hearing problems
when he is in crowds and when there is background noise.
However, the ratings in the Schedule for Rating Disabilities
provide an adequate basis for assessing the effects of
hearing loss on the veteran’s earning capacity. Therefore,
the day-to-day difficulties encountered by the veteran as a
result of his hearing loss do not provide a basis for the
assignment of an increased rating. Similarly, the need for
hearing aids does not establish that the hearing loss is
sufficient to warrant an increased evaluation. VA
evaluations are intended to make proper allowance for
improvement by hearing aids. 38 C.F.R. § 4.86 (1996).
The Board finds that the evidence in this case with respect
to the degree of disability is not in relative equipoise, and
inasmuch as the schedular criteria for the various percentage
ratings for hearing loss are specific and objective, the
provisions of 38 U.S.C.A. 38 C.F.R. § 4.7 (1996) are not for
application.
ORDER
An increased rating for bilateral hearing loss, currently
assigned a ten percent rating, is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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